Seven Model Cases of Good Faith and Peaceful Enforcement Published by the Supreme People's Court

最高人民法院发布7起善意文明执行典型案例

(January 2, 2020)

（2020年1月2日）下跌你应该笑还是哭法小宝

Table of Contents for Selected Model Cases

典型案例选编目录

1. Case of property preservation between Investment Company and Resources Group Company et al.

1.某投资公司与某资源集团公司等财产保全案件

2. Case of dispute over application of Beijing Real Estate Company for enforcing the equity transfer of Beijing Biotechnology Company et al.

2.北京某房地产公司申请执行北京某生物科技公司等股权转让纠纷案件

3. Series of cases of dispute over application of Xu and others for enforcing payment of loans by Putian Real Estate Company et al.

3.许某某等申请执行莆田市某房地产公司等借款纠纷系列案件

4. Case of dispute over application of Zuo Wa for enforcement of property rights protection against Zuo Ying

4.左某娃申请执行左某英物权保护纠纷案件

5. Case of dispute over application of Leliu Sub-branch of Agricultural Bank of China (ABC) in Shunde District for enforcement of the financial loan contract signed by it and Shunde Copper and Aluminum Sections Company

5.中国农业银行顺德勒流支行申请执行顺德某铜铝型材公司等金融借款合同纠纷案件

6. Case of dispute over application of Chongqing Investment Company for enforcement of the loan contract signed by it and Qingdao Chemical Company et al.

6.重庆某投资公司申请执行青岛某化工公司等借款合同纠纷案件

7. Case of dispute over application of a Villagers' Committee in Luojing Township, Baoshan District, Shanghai Municipality for enforcing the land lease contract signed by it and Shanghai Gardening Company et al.

7.宝山区罗泾镇某村委会申请执行上海某园林公司等土地租赁合同纠纷案件

1. Case of property preservation between Investment Company (here and below, part of the name withheld) and Resources Group Company (here and below, part of the name withheld) et al.

1.某投资公司与某资源集团公司等财产保全案件

--The Court of Beijing Municipality (hereinafter referred to as the “Court”) unfreezes the preservation of stocks of a listed company held by the debtor in the way of “shifting seizure” and creates a better judicial environment for the development of the private enterprise.

——北京法院通过“换封”方式解除对债务人持有的某上市公司股票的保全冻结为民营企业发展营造更好司法环境

[Abstract]

【摘要】

In the course of enforcing the preservation ruling for this case, the Court froze the stocks of a listed company held by a private enterprise, Resources Group Company. Resources Group Company requested the Court to unfreeze the stocks. By adhering to the concepts of good faith enforcement and peaceful enforcement, the Court actively communicated with the applicant for preservation and finally unfroze the stocks held by Resources Group Company in the way of “shifting seizure.” On the premise of ensuring that the applicant's realization of creditor's rights be not affected, the efforts of the Court have reduced the adverse impacts on the respondent and the relevant listed company to the maximum extent.

For the case of dispute over equity transfer between Investment Company and Resources Group Company, in the course of trial, the Court entered a ruling on preservation in action according to the application of Investment Company and specified that the property of approximately CNY200 million under the name of Resources Group Company should be frozen. Afterwards, the Court issued a written notice of assisting in enforcement to the securities depository and clearing institution and froze a large amount of stocks of a listed company held by Resources Group Company.

After the freezing of the said stocks, the respondent, Resources Group Company, and the third party, Technology Company (here and below, part of the name withheld), filed a written application with the Court and requested that the frozen stocks held by the respondent should be unfrozen with the land of the equivalent value owned by Technology Company as guarantee. For the purposes of safeguarding the lawful rights and interests of both parties to the maximum extent, guaranteeing that the realization of creditor's rights by the applicant for preservation is not affected, and avoiding adverse impacts on the normal running of the respondent and the relevant listed company, the Court actively made communication and coordination and the applicant for preservation, Investment Company, finally consented to the respondent's plan of “shifting seizure.” Afterwards, the Court entered a ruling to alter the preservation, seized the land owned by the third party, Technology Company, and unfroze the stocks held by Resources Group Company.

In the trial of a case, for the purpose of preventing the debtor from transferring property, the creditor files an application for preserving and seizing property of the debtor with the people's court. It is of great significance for urging the debtor to voluntarily perform its obligations and ensuring the effective enforcement of a legal document in effect. In this case, according to the application of the applicant for property preservation, the Court froze a large amount of stocks of a listed company held by the respondent. Since the freezing of the listed company's stocks affected the fund-raising and normal running of the listed company to some extent, based on the concepts of good faith and peaceful enforcement, the Court actively communicated with the applicant for preservation, identified the balancing point of interests of both parties, reduced impacts on the normal running of the respondent and the relevant listed company to the maximum extent in the way of “shifting seizure,” and provided strong judicial services and guarantees for safeguarding the lawful rights and interests of private enterprises and other market players and promoting the improvement of the business environment under the rule of law.

2. Case of dispute over application of Beijing Real Estate Company (here and below, part of the name withheld) for enforcing the equity transfer of Beijing Biotechnology Company (here and below, part of the name withheld) et al.

2.北京某房地产公司申请执行北京某生物科技公司等股权转让纠纷案件

--The First Intermediate People's Court of Beijing Municipality (hereinafter referred to as the “First IPC of Beijing Municipality”) actively promotes the segmented registration of the real estate involved and partial seizure of such real estate.

——北京一中院积极推动对涉案不动产的分割登记、部分查封

[Abstract]

【摘要】

The 20-floor building under the name of the person subject to enforcement has only one property certificate and the overall seizure has obviously exceeded the subject matter of enforcement in this case. In accordance with the law, where the property is inseparable and the person subject to enforcement has no other property for enforcement, the overall seizure of the property is permitted. The First IPC of Beijing Municipality adhered to the concept of good faith enforcement, coordinated all registration administrative authorities, actively promoted the segmented registration of the real estate involved, lifted the seizure of the real estate exceeding the subject matter of enforcement, avoided adverse impacts of the seizure on property utility, and minimized adverse impacts on the debtor.

In the case where Beijing Real Estate Company applied for enforcing the payment of the equity transfer fund by Beijing Biotechnology Company (here and below, part of the name withheld), Beijing Investment Company, and Guangzhou Investment Company (here and below, part of the name withheld), according to the judgment, the aforesaid persons subject to enforcement should jointly and severally pay the applicant for enforcement the equity transfer fund of CNY80 million and the relevant interest loss. This case was docketed by the First IPC of Beijing Municipality for enforcement. Concurrently, the IPC of Beijing Municipality also enforced the judgments of several other cases of disputes over private lending, equity transfer, and litigation agency contract involving Beijing Investment Company, with the total amount of subject matter of over CNY600 million.

In the course of enforcement, the First IPC of Beijing Municipality seized the house property under the name of Beijing Investment Company located in Zhichun Road, Haidian District, Beijing Municipality. This building has a total of 20 floors and the estimated value is about CNY2 billion. The person subject to enforcement filed an application, hoping that the First IPC of Beijing Municipality can lift the seizure of the building. It expressed that it would pay off the debts by raising funds in other ways, but the applicant for enforcement set itself against lifting the seizure and it was anxious for failure to realize its rights once the seizure was lifted.

For the purpose of safeguarding the lawful rights and interests of all parties, the enforcement judges went to the Commission of Housing and Rural-Urban Development, the Planning and Land Administration, and the Real Estate Registration Center for multiple times and upon repetitive communications, the former one property certificate of the building involved was segmented to 24 property certificates. Then, they underwent the formalities for lifting the seizure of the entire building, seized the house properties on the first to tenth floors of the building, and seized the apportioned land area again. In this way, the seizure by exceeding the subject matter of enforcement was avoided, the person subject to enforcement could revitalize its assets and raise funds, all debts were paid off with the raised funds, and the enforcement of judgments of the series of case has been smoothly completed.

In enforcement cases, it is common that the estimated value of a real estate under the name of the person subject to enforcement greatly exceeds the amount of money involved in enforcement and the real estate has only one property certificate. In the course of enforcement, it is difficult to accurately dispose of the amount of money invovled in the real estate and the overall disposal of the real estate may cause great impacts on the lawful rights and interests of the person subject to enforcement. The people's courts need to take flexible enforcement measures to not only protect the creditor's rights of the applicant for enforcement, but try not to affect the normal running of the person subject to enforcement and avoid unnecessary loss. In this case, under unified scheduling and active coordination of the Supreme People's Court and by adhering to the concept of good faith enforcement, the enforcement court actively coordinated with the real estate registration authority, segmented the property certificate shared by the real estate invovled into several ones, seized the real estate within the scope of the subject matter invovled. In this way, the person subject to enforcement may conduct normal running and raise funds by using the real estate not seized, the interests of the person subject to enforcement are free of unnecessary loss, and the judgment was smoothly enforced. It has created a new situation in the enforcement work in an innovative way and the lawful rights and interests of all parties have been safeguarded.

3. Series of cases of dispute over application of Xu (here and below, part of the given name withheld) and others for enforcing payment of loans by Putian Real Estate Company (here and below, part of the name withheld) et al.

3.许某某等申请执行莆田市某房地产公司等借款纠纷系列案件

--The Intermediate People's Court of Putian City (hereinafter referred to as the “IPC of Putian City”) introduces a strategic investor to assist in revitalizing the assets of the enterprise subject to enforcement.

——莆田中院引入战略投资者帮助盘活被执行企业资产

[Abstract]

【摘要】

The person subject to enforcement invovled, Putian Real Estate Company, is an enterprise having a history of more than ten years and over a thousand employees. Due to a wrong investment decision, its capital chain suddenly broke and it is debt ridden. The creditors filed lawsuits with courts one after another. The IPC of Putian City intensified connection between the people's government and the people's court, voluntarily conducted communication and coordination, actively introduced a third-party strategic investor, revitalized the assets of the person subject to enforcement, took enforcement measures in a legal and proper manner, and promoted case enforcement and settlement.

There are 491 outstanding enforcement cases with Putian Real Estate Company as the person subject to enforcement in the IPC of Putian City, Fujian Province. With the principal and interest of the subject matter under application for enforcement amounting to almost CNY3 billion, the IPC of Putian City seized the properties under the name of Putian Real Estate Company according to the law. A real estate project of the Company had the risk of being unfinished due to the capital chain rupture and the project funds in arrears gave rise to repetitive public complaints by its migrant workers. If such enforcement measures as seizure and auction were simply taken, it was possible to cause failure in payment of all debts in the series of cases and the interests of houseowners could not be guaranteed. In addition, facing bankruptcy, the enterprise would fail to pay off wages of the workers, which may bring destabilizing factors to the local society.

The IPC of Putian City found after in-depth visit and investigation that the real estate project had housing of 347,800 square meters with the estimated sales amount of over CNY4 billion. However, due to financial difficulties, the person subject to enforcement mortgaged the land use right of the aforesaid housing to Shanghai Real Estate Company (here and below, part of the name withheld), with the mortgage principal of CNY575 million. The relevant case has entered the enforcement process in the Higher People's Court of Shanghai Municipality (hereinafter referred to as the “HPC of Shanghai Municipality”). Considering that enterprise subject to enforcement has more funds than its debts and it only temporarily has difficulties due to turnover of capital, the IPC of Putian City conscientiously implemented the requirements raised by the Supreme People's Court that “enforcement measures should be prudently taken according to the law, the normal running of enterprises should be protected, and the stable operation of non-public economic entities should be maintained,” actively sought support from the Party Committee and People's Government of Putian City, convened the land and resources bureau, the planning department, the housing and urban-rural development department, the fire control department, the finance office, and the commercial bank in Putian City to make studies and arrangements for several times, and drove Putian Investment Group (here and below, part of the name withheld) to inject capital of CNY500 million to the person subject to enforcement by stages as a strategic investor for work resumption of the housing.．．．．．．

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